Concepts of Sovereignty - Essay Example

Introduction The primary purpose of Article 234 is to provide national courts a means whereby they might refer questions of interpretation and validity of EC law to the ECJ – hence ensuring the correct and uniform application of EC law by the Courts of Member States (Steiner & Woods, 2003, p. 545). In this way national courts are able to assist in the enforcement of EC law, since a ruling may indicate either that the Member State is in breach of Community law through a national law or procedure or even that a provision of EC regulations, directives or decision is invalid and therefore unenforceable against the individual (Steiner & Woods, 2003, p. 541). It effectively allows individuals to challenge actions by Member States or the EU institutions through the ECJ but obtain an effective remedy from his national court. Article 234 also provides guidance on what national courts should do in the event that an individual seeks to invoke his/her Community rights in order to challenge national law. This is necessary because In most Member States concepts of sovereignty prohibit challenge to the legality of statute or, a fortiori, constitutional law. Furthermore, in most Member States there are lacunae, gaps in the legal protection of individuals, arising from traditional privileges and immunities. Sometimes these limitations are justified, sometimes they are not. (Steiner & Woods, 2003, p. 130) Status of An EC Decision An EC decision is ‘binding in its entirety upon those to which it is addressed’ (Article 249). Italy therefore must implement the decision. Whilst EC decisions are not described as being ‘directly applicable’ they can be ‘directly effective’ (vis-à-vis the State and the individual) provided the criteria for direct effects are satisfied: Grad v Finanzamt Traustein (case 9/70). Therefore Maria will have a remedy against her employer provided it is an ‘organ of the state’ and she can establish her allegations of unfair treatment. When Should Article 234 be relied upon? The question before us is why and in what circumstances can the preliminary ruling procedure outlined in Article 234 EC be evoked, and by which legal authority. Article 234 EC provides that: (1)The Court of Justice shall have jurisdiction to give preliminary rulings concerning: a) the interpretation of this Treaty b) the validity and interpretation of acts of the institutions of the Community c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. (2) Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. (3) Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. There are a number of points to note from the Article. Only a court or a tribunal may make a referral under the Article. The Article is only concerned with interpretation and validity of the Treaty, acts of the EC institutions and statues of bodies established by acts of the Councils where those statutes so provide. ‘Court or Tribunal’ The first thing to determine is whether the Italian Medical Council (IMC) would be considered a ‘court or a tribunal’ within the meaning of the Article. The definition is a matter of Community law, and the ECJ has interpreted the meaning of ‘any court or tribunal’ in the widest sense. Steiner & Woods (2003, p. 555) suggest 5 criteria for the identification of a court/tribunal: Statutory origin Permanence Inter partes procedure Compulsory jurisdiction and The application of rules of law A further criteria is that the body must also be independent: Predo di Salo v Persons Unknown (case 14/86). In Broekmeulen (case 246/80) the appeal committee of the Dutch professional medical body sought clarification as to whether they were a ‘court or tribunal’ within the meaning of Article 234. The ECJ held: …in the practical absence of an effective means of redress before the ordinary courts, in a matter concerning the application of Community law, the appeal committee, which performs its duties with the approval of the public authorities and operates with their assistance, and whose decisions are accepted following contentious proceedings and are in fact recognised as final, must be deemed to be a court of a Member State for the purpose of Article 177 [now 234]. Whilst it is not clear on the facts that there is no other ‘effective means of redress before the ordinary courts’ we submit that if challenged the IMC would be considered a ‘court or tribunal’ within the meaning of the Article, particularly as we are told that they are recognised by the Italian law and that regulation provides that their findings are legally binding and final. Furthermore, they are specifically charged with resolving disputes relating to pensions. Article 234(2) ‘Permissive’ Jurisdiction Looking at the facts before us we cannot see any cause of action for Maria to be seeking interpretation of the EC decision which ensures equal treatment under pension legislation in Italy. However, let us say that there is good cause of action of which we are unaware. Article 234(2) tells us that any court or tribunal of a Member State can seek a preliminary ruling if it considers that a decision on the question is necessary to enable it to give judgment. This clearly indicates that any ‘court or tribunal’ has the option to refer a matter pertaining to interpretation or validity under the Article. This is known as the ‘permissive’ jurisdiction and has been confirmed in R v Plymouth Justices ex Parte Rogers (1982). However, it should be noted that in that case the High Court expressed the view that the right should be exercised with caution. It should be clear that it is a discretionary right – not compulsory – under Article 234(2). The facts before us are silent as to the opinion of the Tribunal whether it needs a preliminary ruling in order to conclude the matter before it. However we cannot see why the Tribunal should require further assistance in determining the meaning of the EC decision. Prima facie there is no matter of law to be decided here – which is the only ground for referral. National Courts/Tribunals have no right under Article 234 to refer matters of fact to the ECJ. If Maria can establish that the facts - on a balance of probabilities - indicate unfair treatment then the Tribunal has to find judgment in her favour. In the event that the Tribunal is uncertain of its ability to interpret the EC decision it would then have to determine whether it had to pursue that path in order to conclude Maria’s case. Note this is a 2 step procedure: first is it necessary; and secondly is the ECJ the only place to resolve the matter. There are well established guidelines (in UK law) as to how to make that decision. Lord Denning in Bulmer v Bollinger (1974) delineated the circumstances in which a court/tribunal might choose to request interpretation from the ECJ1. Lower courts should consider the following: In the first instance the judge should decide the matter himself, unless it is unusually difficult and important. Whether it would lead to undue delay in an urgent case eg injunction proceedings Whether the matter is one of interpretation of the Treaty. Only pure matters of law should be referred. The judge should ensure that both parties to agree to a referral – particularly in view of the additional time and costs involved. Denning’s guidelines would suggest that the tribunal would be expected to attempt to resolve the matter itself – perhaps leaving the matter to go to appeal in the national courts, rather than refer it to the ECJ. Article 234(3) ‘Mandatory’ Jurisdiction It is to be noted that because the IMC’s decisions are legally binding and there is no appeal from its decisions, in the event that there was a matter of law requiring interpretation, then it would have to refer the matter: Article 234(3). This is known as a ‘mandatory jurisdiction’. The ECJ provided further guidelines on when final courts/tribunals should apply under Article 243(3) in CILFIT Srl (case 283/81): …the courts or tribunals referred to in Article [234(3)] have the same discretion as any other national court or tribunal to ascertain whether a decision on a question of Community law is necessary to enable them to give judgment. Further, there will be no need to refer if the question is irrelevant; the ECJ has already settled the issue (even when the facts are dissimilar); or where the answer to the question is glaringly obvious2. Denning in Bulmer Ltd v Bollinger (1974) clarified this further, arguing that a referral to the ECJ would only be necessary if it was conclusive to the judgment and there was no previous ECJ judgment on the matter. Enforcement in the National Court It seems to us that there is no matter of Community law to be referred to the ECJ in this case. The law on sexual discrimination is certain, and the tribunal only need determine the facts. There is precedent for this point of view. In Church v Scientology v Customs and Excise Commissioners (1981) the Court o f Appeal declined to send to Luxembourg a case involving the assessment for VAT on books sold by the Church of Scientology because it first had to decide as a matter of fact whether the Church was genuinely a non-profit religious or philosophical body – in which case it would not be liable for Vat and the matter would be dismissed. We submit that this would also be the case here. The IMC must first determine whether the facts support the allegation of unfair treatment and make a ruling on the matter. It may be that Maria believes that the ECJ will actually decide the merits of her case – it will not. It could at most simply give a ruling on how the legislation is to be interpreted in line with the Treaty’s broader aims in the context of the facts of her case. The ECJ will only interfere where there is already a harmonising measure relating to procedural rules and national law is in conflict with these. In Dorsch Consult (case54/96) the ECJ held that: It is for the legal system of each Member State to determine which court or tribunal has jurisdiction to hear disputes involving individual rights derived from Community law… It is not for the Court of Justice to involve itself in the resolution of questions of jurisdiction to which the classification of certain legal situations may give rise in the national legal system. However, this does not mean that national courts may automatically rely on their existing procedural rules – they have a duty to ‘ascertain whether the procedural rules intended to secure that the rights derived from Community law are safeguarded under national law and comply with the principle of equivalence.’ Levez v Jennings (Harlow Pools) Ltd (case C-326/96).3 Effect of A Ruling Any ruling made by the ECJ under Article 234 is binding in the individual case as it relates to the interpretation of Community law. However, the ECJ is not bound by its previous decisions, and so it is possible for a member state to seek a further ruling if it has a ‘real interest’ in doing so: Da Costa en Schaake (cases 28-30/62). Judgements are rarely retrospective once made due to the serious economic repercussions on parties, though in Defreenne v Sabena (No 2) (case 43/75) the court allowed its judgment to be applicable to those cases which had been lodged prior to the day of judgment. Conclusion It remains for Maria to satisfy the IMC that there is a question of interpretation to be referred. The IMC must then determine whether – after considering all the facts – it is necessary to do so, and whether it wishes to do so in a matter which is acte clair. We are satisfied on the facts that Maria would be most unlikely to be granted permission to refer this to the ECJ until the IMC had an opportunity to rule on the facts. Further we are satisfied that the ECJ would not be prepared to adjudicate on the matter, as it involves no question of Community law relating to interpretation or validity. Words: 2102 Bibliography Article 234 EC Broekmeulen (case 246/80) Bulmer v Bollinger (1974) Church v Scientology v Customs and Excise Commissioners 1981 CILFIT Srl (case 283/81): Da Costa en Schaake (cases 28-30/62). Defreenne v Sabena (No 2) (case 43/75) Dorsch Consult (case54/96) Grad v Finanzamt Traustein (case 9/70) Levez v Jennings (Harlow Pools) Ltd (case C-326/96). Predo di Salo v Persons Unknown (case 14/86). R v Plymouth Justices ex Parte Rogers 1982 Steiner & Woods, 2003. Textbook on EC Law. 8th Edition. OUP: New York Read More